NO, JAMES MADISON DID NOT REJECT NULLIFICATION
January 10, 2014 Leave a comment
For some reason, some conservative commentators keep propagating the historical lie that James Madison “rejected nullification.” James Madison did no such thing.
Even while opposing a bastardized proposal for nullification created out of thin air in South Carolina, he still supported nullification as a “natural right.”
In Madison’s “notes on nullification” during the later days of his life, he explicity rejected a very specific doctrine of nullification proposed by South Carolina. But during the same time period, he refered to “nullification…as a natural right”
Madison’s arguments against this doctrine are hard to dispute. Here’s what he wrote:
This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the state to be unconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three-fourths of the parties.
The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring the three-fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two-thirds of the states to institute and three-fourths to effectuate an amendment of the Constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports that the decision of the state is to be presumed valid, and that it overrules the law of the United States, unless overruled by three-fourths of the states.
Madison is talking about a bastardized version of nullification which South Carolina’s advocates proposed.
South Carolina essentially asserted that once a single state nullified a federal act, it was annulled within that state and it could not be legally enforced there until three-quarters of the other states overruled the nullification.
Furthermore, South Carolina claimed that a state’s act of nullification was “presumed right and valid” until overturned.
In other words, a single state could effectively control the entire country.
An article published in the influential North American Review, published in January 1833, sums up the nullification doctrine advanced by South Carolina and vehemently opposed by Madison.
The controversy is, however, not about words, but things. The right which the Vice-President (Calhoun) disclaims under the name of abrogating, but claims for a State under that of nullifying an act of the General Government, is thus stated by himself in the letter alluded to above.
1. A State has a right, in her sovereign capacity in Convention, to declare an unconstitutional act of Congress to be null and void; and such declaration is obligatory on her citizens, and conclusive against the General Government; which would have no right to enforce its construction of its powers against that of the State.
2. Upon the exercise of this right by a State, it would be the duty of the General Government to abandon the power, at least as far as the nullifying State is concerned, and to apply to the States themselves, according to the form prescribed by the Constitution, to obtain it by a grant.
3. If the power thus applied for be granted, acquiescence then would he a duty on the part of the State; and in that event, the contest would terminate in converting a doubtful constructive power into one positively granted: but should it not be granted, no alternative would remain for the General Government but its permanent abandonment.
Such are the three leading points in the doctrine of nullification, as laid down by its principal champion.
Representatives of the Palmetto State forwarded this idea as a “constitutional” remedy. The South Carolina version of nullification held that a single state’s action legally bound the rest of the country and annulled – or made legally inoperative – the federal act within that state.
It’s important to understand that South Carolina was using, and Madison was addressing, a very precise, legal definition of nullification. The modern day nullification movement uses the term in a more practical, Jeffersonian, natural-right sense.
Madison was addressing the South Carolina doctrine that defined nullification in a legal sense – to annul the law – or render it legally invalid, like a veto.
Of course, we find no such mechanism in the Constitution, and Madison rightly argued this idea was absurd.
“But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.” [Emphasis added]
Quite simply, a single state can’t bind other political societies – neither the other states, nor the union of states created by the Constitution. A single state has no power to legally require federal agents to cease enforcement of federal acts. No mechanism exists for a single state to veto a federal act and force other states or the federal government to recognize that veto as “right and valid.” The Constitution does not establish any such process, as Madison asserted in the Notes.
This was the “nullification” Madison was addressing in his Notes – a process dreamed up by Calhoun and South Carolina statesmen – and readers must keep that context in mind.
Modern nullification opponents fail to do so. They ignore what Madison was clearly addressing by taking quotes from Notes and using them to attack Jeffersonian nullification, the foundation of the modern nullification movement.
Even while arguing against South Carolina nullification, Madison continued to affirm Jeffersonian nullification in his Notes.
“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. It cannot be supposed for a moment that Mr. Jefferson would not revolt at the doctrine of South Carolina, that a single state could constitutionally resist a law of the Union while remaining within it, and that with the accession of a small minority of the others, overrule the will of a great majority of the whole, & constitutionally annul the law everywhere.” [Emphasis added]
Madison again states his opposition to the specific “doctrine of South Carolina,” the bastardized version of nullification created by Calhoun. He also emphatically asserts that “all admit” nullification to be a “natural right” – a legitimate and valid option to stop the oppression of federal usurpation.
In other words, when the federal government unchains itself from its constitutional restraint, the people of the states have the right to defend themselves and stop it.
Yes. James Madison correctly rejected the South Carolina doctrine of nullification, which claimed the power to legally bind everyone to its own decision. At the same time, James Madison was quite clear that nullification is an undisputed natural right.
Those who claim Madison opposed nullification are either ignorant of this fact, or lying.
CORRECTING MARK LEVIN’S REPEATED MISREPRESENTATION OF JAMES MADISON
Written by Joe Wolverton, II, J.D. | The New American
Mark Levin (shown) is at it again. During an appearance on CSPAN’s Book TV program, the talk-show host went on a rhetorical rampage against those who prefer nullification over a constitutional convention as a tactic in the war against federal tyranny.
Given that Levin is little more than an entertainer who gets richer the more provocatively he behaves, it isn’t surprising that he would refer to the legitimate constitutional scholars who promote nullification (Thomas Woods, Kevin Gutzman, Walter Williams, Andrew Napolitano, among others) as “neo-confederates, fringe, idiotic, and crazy.”
Levin apparently believes that he can boost his credibility as a respectable constitutional authority by resorting to school-boy name-calling.
Although his interpretation (willful or ignorant) of a letter written by James Madison has now been exposed as incorrect, Levin continues perpetuating this fraudulent view of Madison’s opinion of state nullification of federal acts.
Levin’s comments demonstrate he knows little about the Constitution and less about context.
The con-con’s college of academics should know better, however. They should know that by removing a word from its original and intended context they put false words in an author’s mouth and commit fraud against those who are unfamiliar with the original source of the word or concept they claim to be quoting.
Take the word “killing,” for example. While I might write that “killing” is acceptable in one circumstance or another (self-defense and in war, for example), that does not mean that I support killing in every situation. Context is key.
With that in mind, it is disingenuous (at best) for self-promoting “constitutional scholars” and “historians” to claim that James Madison opposed nullification, period. That is a gross mischaracterization and one that needs to be once and for all corrected.
This article will restore necessary context to the word “nullification” as used by James Madison in an 1834 letter called “Notes on Nullification.”
First, we have to put Madison’s role in the formulation of the concept of nullification into some context of its own.
As indispensable as he was to the development of our Constitution, James Madison is not the father of nullification. The idea that a smaller division (a state, a county, a city, etc.) is justified — even obliged — in refusing to obey unlawful edicts of the larger society (the federal government, in the case of the United States) was not original to Madison, Jefferson, or any of America’s Founding Fathers. The doctrine we call nullification was known for generations before the Kentucky and Virginia Resolutions were written.
Our Founders drew wisdom and inspiration from a variety of sources, including a group of continental natural law theorists, one of whom was Samuel Pufendorf of Germany (read of the importance of Pufendorf to the Founders here).
In his book The Whole Duty of Man, According to the Law of Nature, written in 1673, Pufendorf explained that for a law “to exert its force,” that is to say, for it to be legitimate, first, the law must be “plainly and openly made.” Can we say that about ObamaCare, the NDAA, the scores of executive orders infringing on the right to keep and bear arms? Absolutely not.
Second, Pufendorf writes that a law may be enforceable only if the subject of the proposed law “belongs to that office” of the lawmaker and it contains “nothing derogatory to the sovereign.”
In the United States, the Constitution is the sovereign law of the land. If, then, any act of Congress (the constitutional lawmakers) exceeds the power given to that body, then the states (Pufendorf uses the term “country or city”) may exercise their natural right to refuse to “pay obedience” to those acts.
Madison makes references to this “right” in his “Notes on Nullification,” the document so often quoted by those who argue that the author of the Virginia Resolution walked back from his support for state nullification of unconstitutional acts of the federal government.
In his “Notes,” Madison attempts to describe “the essential distinction between a constitutional right and the natural and universal right of resisting intolerable oppression.”
The “constitutional right” he speaks of is that being asserted by South Carolina. This is the critically important context mentioned above. In its effort to resist what it deemed federal overreach, the legislature of South Carolina was in fact overreaching itself.
As Mike Maherry of the Tenth Amendment Center explains, “South Carolina essentially asserted that once a single state nullified a federal act, it was annulled within that state and it could not be legally enforced there until three-quarters of the other states overruled the nullification. Furthermore, South Carolina claimed that a state’s act of nullification was ‘presumed right and valid’ until overturned. In other words, a single state could effectively control the entire country.”
That’s not the sort of nullification that Madison described as a “duty” of states, one necessary for “arresting the progress of evil.”
In the “Notes,” Madison writes:
But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.
Modern advocates of nullification understand, as did James Madison, that the legislative will of one state is not binding on the others. In fact, a state bill voiding a federal act has no effect on the federal government, either. That is to say, even though a state legislature deems a federal act unconstitutional, that doesn’t make it so, at least anywhere other than in the nullifying state itself.
As constitutionalists, supporters of contemporary efforts to nullify unconstitutional acts of the federal government also demand that the letter of that document be followed precisely. Therefore, it is important to point out that the Constitution does not permit the government of a single state to render a federal act void on its face or to make it so that the rest of the states must bow to the will of the would-be nullifying state and be forced to refuse to enforce the mandates of the federal act.
This is the application of “nullification” that Madison rightly found constitutionally indefensible.
However, Madison consistently defended the type of state nullification that is “the natural right, which all admit to be a remedy against insupportable oppression.” It would be difficult to argue that James Madison would not consider ObamaCare, for example, to qualify as an “insupportable oppression” worthy of resistance.
Given the letters behind the names of so many of the so-called conservative scholars denouncing nullification and rejecting it as an effective defense against the federal assault on the Constitution, it seems unlikely that they do not understand this nuance of nullification.
Thankfully, there is a growing number of state and local lawmakers who do understand it and are working within the constitutionally sound sphere of nullification to strike back at the federal usurpation.
As greater numbers of legislators, governors, and citizens learn of the immense power of nullification, they will more readily and fearlessly work to reverse the trend of constant federal overreach by insisting that the states resume their role as what Madison called the “sure guardians of the people’s liberty.”
An added benefit of nullification is that its persistent practice builds trust between the elected and the electorate by encouraging the recognition of reliable patterns of interaction between state and local authorities and the federal government. By consistently demanding that Washington confine itself to its small, well-defined zone of influence, everyone — citizen, state lawmaker, president, and congressman — knows where he stands and can act knowing they enjoy the good will of those whom they serve.
Over time, even occasional deviations from the constitutional straight and narrow would evoke instant reprisals from the states and the people, savvy to the restrictions on the federal government’s authority as imposed by the enumeration of powers in the Constitution.
In fact, if states corrected every federal misstep — purposeful or accidental — then federal legislators might eventually be disabused of their shared delusion that their counterparts on the state level are dumb and docile pack animals that can be easily burdened and herded into the corrals of despotism.
Finally, of all the legal, constitutional, and moral reasons to support nullification, there is one that sits at the pinnacle of them all.
Nullification, as described by Madison in the Virginia Resolution, is a nearly fail-safe and foolproof protection of popular sovereignty and limited government.
Mark Levin and the rest of the con-con collaborators might not understand this, but thousands of constitutionalists across the country do, and they are nullifying unconstitutional acts of the federal government in a way in which James Madison would undoubtedly approve. Without exposing the delicate gears of the Constitution to the monkey wrench of an Article V constitutional convention.
The Liberty Amendments: Restoring the American Republic by Mark R. Levin
IN THE LIBERTY AMENDMENTS, MARK LEVIN TURNS TO THE FOUNDING FATHERS AND THE CONSTITUTION ITSELF FOR GUIDANCE IN RESTORING THE AMERICAN REPUBLIC.
For a century, the Statists have steadfastly constructed a federal Leviathan, distorting and evading our constitutional system in pursuit of an all-powerful, ubiquitous central government. The result is an ongoing and growing assault on individual liberty, state sovereignty, and the social compact. Levin argues that if we cherish our American heritage, it is time to embrace a constitutional revival.
The delegates to the 1787 Constitutional Convention in Philadelphia and the delegates to each state’s ratification convention foresaw a time when—despite their best efforts to forestall it—the Federal government might breach the Constitution’s limits and begin oppressing the people. Agencies such as the IRS and EPA and programs such as Obamacare demonstrate that the Framers’ fear was prescient. Therefore, the Framers provided two methods for amending the Constitution. The second was intended for our current circumstances—empowering the states to bypass Congress and call a convention for the purpose of amending the Constitution. Levin argues that we, the people, can avoid a perilous outcome by seeking recourse, using the method called for in the Constitution itself.
The Framers adopted ten constitutional amendments, called the Bill of Rights, that would preserve individual rights and state authority. Levin lays forth eleven specific prescriptions for restoring our founding principles, ones that are consistent with the Framers’ design. His proposals—such as term limits for members of Congress and Supreme Court justices and limits on federal taxing and spending—are pure common sense, ideas shared by many. They draw on the wisdom of the Founding Fathers—including James Madison, Benjamin Franklin, Thomas Jefferson, and numerous lesser-known but crucially important men—in their content and in the method for applying them to the current state of the nation.
Now is the time for the American people to take the first step toward reclaiming what belongs to them. The task is daunting, but it is imperative if we are to be truly free.